In the workplace, a simple touch can carry complex consequences.
The Employment and Labour Relations Court has upheld the dismissal of a private school staff member for patting female colleagues on the shoulders and touching their knees during casual conversations, actions he claimed were meant to grab their attention during discussions.
Though the man claimed that the incidents were part of friendly workplace interactions, especially in cheerful debates, the court found that the conduct constituted sexual harassment.
“The fact that the claimant may have been unaware that some physical touches amount to sexual harassment does not absolve him of the consequences thereof. His ignorance of what constituted sexual harassment is not a valid defence,” said Justice Stella Rutto.
The man, Mr FKN, also claimed that he was only joking with the female colleagues and that it was his nature to pat a person’s shoulder or knee during a conversation when he wanted to emphasise a point.
But Justice Rutto ruled that he was at all times expected to maintain professionalism in his interactions with colleagues, and the school was justified in dismissing him.
“It is apparent that in his interactions with his colleagues, the claimant may have crossed the professional line with his jokes or physical touches. Regardless of the nature of the claimant’s personality, the bottom line is that some types of behaviour in the workplace are simply unacceptable,” she stated.
While upholding the dismissal, the court said that employers are required by law to take reasonable steps to prevent sexual harassment in the workplace.
The man worked as a transport supervisor at the school (name withheld), located in the Gigiri area of Nairobi. He was dismissed in October 2021 over allegations of sexual misconduct.
All seemed well in the employment relationship until September 2021, when FKN was alleged to have engaged in sexual misconduct. A disciplinary process was followed, culminating in his termination.
But he sued, claiming that the reasons given for his termination were neither valid nor justified. He further argued that the school violated principles of natural justice, human rights and equity by failing to give him a fair administrative process.
He asked the court to declare that his termination was wrongful, malicious, unfair and unlawful and sought compensation equivalent to 12 months' salary.
Mr FKN also sought damages for slander, alleging that the school had leaked information about the misconduct, which was later mentioned by a neighbour at home.
Although the court found the dismissal substantively justified, Justice Rutto ruled that the termination process was procedurally flawed because the school withheld crucial evidentiary material during the disciplinary process.
For instance, none of the colleagues who had complained about his behaviour were present at the disciplinary hearing. As a result, he was denied the opportunity to cross-examine the complainants.
“As the court has found that the respondent has proved there was a justifiable reason to terminate the claimant’s employment but failed to apply a fair process, the court awards him compensatory damages equivalent to three months of his gross salary,” ruled Justice Rutto.
She awarded him Sh496,500, stressing that the employer was obligated to ensure a fair and just disciplinary process.
A school employee testified that the dismissal followed both verbal and written sexual harassment complaints filed with the Human Resources department against Mr FKN.
The employer launched an internal inquiry by interviewing various employees, during which three more women lodged complaints. These included the school doctor, who alleged that Mr Fkn patted her shoulder.
In response to the show-cause letter, Mr FKN admitted to touching and patting colleagues on the shoulders or knees during conversations but pleaded ignorance of the fact that such conduct amounted to sexual harassment.
“Generally, I know I am kind-hearted, loving everyone in their own situations and someone who likes to joke and cheer people up. When talking or sharing stories, I am the kind of person who animates to stress the point. If I’m standing, I may pat the shoulder and if we’re seated, I may pat the knee,” Mr FKN said in the letter.
He apologised for making anyone uncomfortable, insisting his actions were innocent and without ill intent.
“I regret and am sorry for all who appeared before the panel and confessed that at some point I made them uncomfortable through jokes or by touching. I wish these people had come to me or sent someone to warn me about it. I would have been wise,” he said.
However, Justice Rutto noted that the inquiry report showed those interviewed felt that Mr FKN’s jokes were inappropriate, demeaning and flirtatious.
“The inquiry report indicates that four of the female staff members who were interviewed stated that they had been touched by the claimant and that they were not comfortable with it. The report further states that three of them indicated this happened while they were alone in the claimant’s car going home. The report further indicates that, when interviewed, the claimant admitted to the jokes but did not admit to touching the three women in his car,” said the judge.
The court concluded that, regardless of Mr FKN’s perception of sexual harassment, it was clear that his colleagues were uncomfortable with his jokes and physical contact, however innocent his intentions may have been and that his conduct was unwelcome.
